On June 17, 2011, CMS published a memorandum detailing the reporting requirements when there is a reasonable suspicion of a crime in a long-term care facility as required by section 1150B of the Social Security Act. The memorandum, subsequently updated on January 20, 2012, noted that Section 1150B requires owners, operators, employees, managers, agents, or contractors of nursing facilities ("obligated individuals") in applicable nursing facilities to report any reasonable suspicion of crimes committed against a resident of that facility to the appropriate entities. This includes law enforcement entities.1
Section 1150B also requires that applicable nursing facilities annually notify obligated individuals of their duty to report to the appropriate entities any reasonable suspicions of a crime.2 Nursing facilities are also required to post clearly a notice for employees specifying their right to file a complaint under Section 1150B without suffering any retaliation.3
Recently, the OIG reviewed the compliance level with this section of the Social Security Act. The OIG found that 40% of nursing facilities failed to either annually remind obligated individuals of their responsibilities and/or failed to post their employee's rights to file a complaint.4 A facility may demonstrate compliance with these regulations by including a copy of a notice or letter sent to obligated individuals or a completed training/orientation attendance sheet specifying reporting obligations.
Relatedly, the OIG also found that 47% of facilities failed to properly report allegations of abuse or neglect as required by federal law.5 In other words, almost half of nursing homes failed to report these allegations to the administrator or to the state survey agency within 24 hours.6 The OIG also found that one-fourth of nursing homes failed to maintain written polices complying with Federal regulations. These nursing homes failed to address that allegations of abuse or neglect must be reported immediately to the nursing facility and the state survey agency, and that investigation results must be reported to the Nursing Facility Administrator and the state survey agency within five (5) working days of the reported incident.
1SSA § 1150B. Applicable nursing facilities include those facilities that receive at least $10,000 in Federal funds under the SSA during the preceding year. Further, the law of the applicable political subdivision in which the long-term-care facility is located defines the meaning of the phrase "reasonable suspicion of a crime."
2SSA § 1150B(a)(2).
3SSA § 1150B(d)(3).
4Department of Health and Human Services Office of Inspector General, Nursing Facilities' Compliance with Federal Regulations for Reporting Allegations of Abuse or Neglect, August 2014.
5Pursuant to Federal regulations, nursing facilities must develop and implement written policies that prohibit abuse or neglect. 42 CFR § 483.13(c). See also CMS, State Operations Manual (Internet-Only Manual), Pub. 100-07, Appendix PP: Guidance to Surveyors for Long Term Care Facilities, F226, § 483.13(c), Staff Treatment of Residents.
6CMS has clarified that the requirement to report allegation of abuse immediately means within 24 hours. CMS, Memorandum to State Survey Agency Directors, S&C-05-09, Clarification of Nursing Home Reporting Requirements for Alleged Violations of Mistreatment, Neglect, and Abuse, Including Injuries of Unknown Source, and Misappropriation of Resident Property, December 16, 2004.
